January 01, 2018

The destiny of natural gas: Recent rulings on the foreseeability of downstream greenhouse gas emissions

Megan Berge and Kyle Henne

Overview

When asked to compare key legal developments related to greenhouse gas (GHG) emissions in the summer of 2016 and the summer of 2017, many practitioners will launch into a discussion of “regulatory reforms” and the “Clean Power Plan.” But another change that should not escape notice relates to the circumstances in which agencies must consider downstream GHG emissions in environmental impact statements published pursuant to the National Environmental Policy Act (NEPA). Virtually identical U.S. Court of Appeals for the D.C. Circuit panels, in rulings a little over a year apart, examined the same question—what environmental impacts are truly caused by an agency action where additional independent regulatory approval is required—and came back with different answers. This inconsistency raises numerous questions for future environmental impact statements, three of which are examined here.

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